Refugee can contest inadmissibility report, minister's appeal dismissed: Federal Court of Appeal

The Federal Court of Appeal (FCA) has dismissed a public safety minister’s appeal to annul a lower court decision allowing a refugee to challenge the validity of an inadmissibility report issued against him.

In Canada (Public Safety and Emergency Preparedness) v. XY, 2022 FCA 113, a border services officer prepared and issued a report after finding that the respondent XY was inadmissible to Canada due to organized criminality. The report was made under s. 44(1) of the Immigration and Refugee Protection Act, which allows an officer who believes that a permanent resident or a foreign national in Canada is inadmissible to prepare a report setting out the relevant facts.

The respondent then applied for a judicial review with the Federal Court to challenge the validity of the inadmissibility report and the decision of the minister’s delegate to refer the report to the Immigration and Refugee Board’s immigration division for an inadmissibility hearing. The Federal Court granted the application, finding that the respondent was not provided with the requisite degree of procedural fairness in the s. 44(1) process.

In allowing the application, the Federal Court also certified the following question: To what extent does a minister’s delegate have an obligation to consider Canada’s obligations under the Refugee Convention in deciding to refer the case of a refugee claimant to the immigration division due to organized criminality?

The minister filed an appeal to annul the Federal Court decision. In its ruling, the FCA dismissed the appeal and upheld the decision.

According to FCA, Federal Court decisions involving immigration matters are generally meant to be final. However, s. 74(d) of the IRPA provides that an appeal may be brought to the FCA if the Federal Court, in rendering judgment, certifies that a serious question of general importance is involved and states that question. Thus, the certification requirements have been described as the “trigger” through which an appeal is permitted.

The FCA stated that considerable jurisprudence addresses what constitutes a serious question of general importance and provides guidance in this regard. Amongst other things, FCA has held that:

• A serious question of general importance is dispositive of the appeal;
• A certified question that is dispositive of the appeal must be one that has been raised and dealt with in the Federal Court decision. Otherwise, the certified question is nothing more than a reference to the Federal Court of Appeal;
• If the Federal Court decides that a question need not be dealt with, it is not an appropriate question for certification.

The FCA agreed with the respondent that the question certified by the Federal Court in this case “was not appropriate for certification” as it is not dispositive of the appeal.

“It is true that the parties made submissions to the Federal Court with respect to the duty of border services personnel writing and referring s. 44 admissibility report to consider Canada’s obligations under the Refugee Convention and to ensure that their decisions are made in conformity with these obligations,” Justice Anne Mactavish wrote. “However, the question certified did not ultimately bear on the Federal Court decision.”

The FCA found that the Federal Court commented only briefly on this issue “without seriously engaging with it.” Moreover, the decision did not consider the substance of Canada’s obligations under international law.  

The FCA noticed that the Federal Court instead decided the case on a different issue – namely, that the duty of procedural fairness required that the respondent can provide submissions on the substance of the inadmissibility allegations and that he be provided with an appropriate level of disclosure to allow him to understand the case against him.

“The fact that the certified question was not the basis of the Federal Court decision is borne out by the fact that the minister does not address the issue raised by the certified question in his memorandum of fact and law,” Justice Mactavish wrote.

The minister argued that the FCA is open to addressing any issue in the appeal and should not be confined to dealing with questions that have been certified by the Federal Court.

“This is a correct statement of the law,” Justice Mactavish wrote. “However, it presumes the existence of a properly certified question.”

The FCA stressed the statutory requirement for a certified question in s. 74(d) is a precondition to a right of appeal. Therefore, the necessary precondition is not met when a question does not meet the certification test, and the appeal must be dismissed.